Aca­demic: Tri­bunal has no ju­ris­dic­tion rights

An ar­bi­tra­tion tri­bunal would be wrong to de­cide in the Philip­pines’ fa­vor over claims it has brought uni­lat­er­ally against China re­gard­ing South China Sea is­sues, ac­cord­ing to a pro­fes­sor at Ox­ford Uni­ver­sity.

Manila has pack­aged its case to per­suade the ar­bi­tra­tors that it lies within the tri­bunal’s ju­ris­dic­tion, when it does not have this right, ac­cord­ing to An­to­nios Tzanakopou­los, as­so­ciate pro­fes­sor of pub­lic in­ter­na­tional law at the Bri­tish uni­ver­sity.

He told China Daily in an ex­clu­sive in­ter­view there is lit­tle doubt that the claims made by the Philip­pines and the dis­pute are over sovereignty, a mat­ter over which the tri­bunal does not have ju­ris­dic­tion.

Tzanakopou­los said he be­lieves the tri­bunal would be wrong to de­cide that it has ju­ris­dic­tion over most of the claims made by the Philip­pines. His views, orig­i­nally out­lined in an ar­ti­cle on the So­cial Science Re­search Net­work, have at­tracted wide at­ten­tion.

“The dis­pute be­tween the Philip­pines and China is ob­vi­ously about sovereignty over mar­itime fea­tures in the South China Sea. Es­sen­tially, the Philip­pines’ sub­mis­sions chal­lenge in one way or another the va­lid­ity of the nine-dash-lines un­der the UN Con­ven­tion on the Law of the Sea,” Tzanakopou­los said.

He was re­fer­ring to a term used by China to de­fine its area of sovereignty and rel­e­vant rights and in­ter­ests in the South China Sea.

Tzanakopou­los said the claims made by the Philip­pines ap­pear to be ask­ing the tri­bunal to de­fine the na­ture of cer­tain mar­itime fea­tures, a mat­ter over which it does not have ju­ris­dic­tion.

The claims are pack­aged in such away to give the tri­bunal an ex­cuse to ex­er­cise ju­ris­dic­tion over them, he said.

China has said it does not rec­og­nize the tri­bunal’s “com­pe­tence” in the sovereignty is­sue and will not ac­cept its rul­ing.

“In­stead of ask­ing who owns these fea­tures, the Philip­pines has asked what the na­ture of these fea­tures is,” Tzanakopou­los said.

“Is a par­tic­u­lar fea­ture an is­land, an islet, a low-tide ele- va­tion or a rock? But, in fact, def­i­ni­tions re­lat­ing to these mar­itime fea­tures have sig­nif­i­cant im­pli­ca­tions for sovereignty is­sues.”

This is be­cause each of these fea­tures may gen­er­ate dif­fer­ent zones of in­flu­ence around them.

“The whole de­bate is about who has con­trol and sovereignty over these mar­itime fea­tures, and thus the zones around these fea­tures that would give ex­clu­sive con­trol over the seabed, sub­soil and wa­ter col­umn.”

The des­ig­na­tion of a land­mass de­ter­mines pre­cisely how the sur­round­ing wa­ter can be used and who can use it.

For ex­am­ple, an is­land is granted a ter­ri­to­rial sea area of 12 nau­ti­cal miles (22.2 kilo­me­ters) and a con­ti­nen­tal shelf of 200 nau­ti­cal miles, and these can be used to claim an ex­clu­sive eco­nomic zone of 200 nau­ti­cal miles. These fac­tors have im­pli­ca­tions re­gard­ing ac­cess to nat­u­ral re­sources in the wa­ter and on the seabed, Tzanakopou­los said.

In­con­trast, a rock is granted a ter­ri­to­rial sea area of 12 nau­ti­cal miles, but no ex­clu­sive eco­nomic zone. A low-tide el­e­va­tion is not granted a ter­ri­to­rial sea area, but it may be used as a base point in claim­ing ter­ri­to­rial wa­ters if it is within 12 nau­ti­cal miles of land.

“Any de­ter­mi­na­tion by the tri­bunal that a par­tic­u­lar mar­itime fea­ture is a low-tide el­e­va­tion, for ex­am­ple, would pre­clude any claim to sovereignty over that fea­ture, as it is in­ca­pable of ap­pro­pri­a­tion,” the aca­demic said.

The Philip­pines claims that an area ex­tend­ing 200 nau­ti­cal miles from its coast, ex­cept for 12 nau­ti­cal miles of high­t­ide land, is its ex­clu­sive eco­nomic zone and con­ti­nen­tal shelf. Manila has ac­cused Bei­jing of in­ter­fer­ing in its ex­er­cise of sovereignty and ju­ris­dic­tion in its ter­ri­to­rial wa­ters.

The Philip­pines also ar­gues that China’s claim to his­tor­i­cal rights within the nine-dash-lines in the South China Sea vi­o­lates its sovereignty and ju­ris­dic­tion over non-bi­o­log­i­cal re­sources on the seabed.

Tzanakopou­los said he be­lieves the tri­bunal made a mis­take in ac­cept­ing that it has ju­ris­dic­tion over some of the Philip­pines’ claims. “If it re­sponds to the Philip­pines’ claims, in some sense it is prej­u­dic­ing is­sues that are not within its ju­ris­dic­tion,” he said.

Chi­nese of­fi­cials and ex­perts have de­fended China’s stance of nonac­cep­tance and non­par­tic­i­pa­tion in the case, say­ing the Philip­pines’ uni­lat­eral ini­ti­a­tion of the ar­bi­tra­tion vi­o­lates in­ter­na­tional law.